Citation Nr: 21015836 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-39 579 DATE: March 18, 2021 ORDER The reduction from 60 percent to 30 percent, effective May 1, 2015, for gastroesophageal reflux disease, diverticulitis, small intestinal bacterial overgrowth and irritable bowel syndrome, also claimed as hiatal hernia (gastrointestinal disability) was not proper; restoration of the 60 percent evaluation is granted. Entitlement to an initial rating in excess of 60 percent for a gastrointestinal disability is denied. FINDINGS OF FACT 1. In July 2014, a Department of Veterans Affairs (VA) Regional Office (RO) proposed to reduce the disability rating of the Veteran’s service-connected gastrointestinal disability from 60 percent to 10 percent. In September 2014, the Veteran and his representative requested a personal hearing to address the proposed reduction. The evidence of record demonstrates that a personal hearing was not held prior to the rating reduction being effectuated in a February 2015 rating decision. 2. Throughout the period on appeal, the Veteran is in receipt of the maximum schedular rating for his GERD and has not described symptoms that fall outside of the rating schedule, or otherwise provide for a higher rating under an alternative diagnostic code. CONCLUSIONS OF LAW 1. The reduction in the evaluation for a gastrointestinal disability from 60 percent to 30 percent, effective May 1, 2015, was improper; the rating must be restored. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105 (e), 3.344, 4.71a, Diagnostic Code 7399-7346. 2. The criteria for a rating in excess of 60 percent for a gastrointestinal disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.114, Diagnostic Code 7399-7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2007 through November 2012. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from July 2014, February 2015, and July 30, 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was provided a hearing before the undersigned Veterans Law Judge in March 2019. In an August 2019 decision, the Board denied restoration of the Veteran’s 60 percent rating for his service-connected gastrointestinal disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an September 2020 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate the August 2019 Board decision and remand the issue back to the Board for further consideration as consistent with the JMPR. The appeal has since returned to the Board. 1. The reduction from 60 percent to 30 percent for gastrointestinal disability was improper and the 60 percent rating is restored By way of procedural history, the RO proposed to reduce the Veteran’s 60 percent disability rating for his service-connected gastrointestinal disability to a 10 percent disability rating in a July 2014 rating decision. In a February 2015 rating decision, the RO reduced the Veteran’s disability rating to 10 percent for his service-connected gastrointestinal disability, effective May 1, 2015. Subsequently, the RO increased the Veteran’s gastrointestinal disability rating to 30 percent, effective May 1, 2015. As indicated above, the Board finds that the reduction of the Veteran’s gastrointestinal disability rating from 60 percent to 30 percent, effective May 1, 2015, was improper. Accordingly, the Board grants the Veteran’s appeal and restores his 60 percent rating. In support of this determination, the Board first notes that, in order to effectuate a reduction in the evaluation of a service-connected disability, VA must notify a beneficiary at his or her last address of record of the contemplated action and then give that individual 60 days to present evidence to show that compensation should be continued at its present level. See 38 C.F.R. § 3.105 (e). Pursuant to 38 C.F.R. § 3.105 (i)(1), VA is to inform the beneficiary that he or she has the opportunity for a hearing prior to the decision as to whether a reduction is warranted, provided that a request for a hearing is received by VA within 30 days from the date of notice. In this case, the RO notified the Veteran of a proposed reduction in his gastrointestinal disability rating via a letter dated August 18, 2014. In this letter, the RO informed the Veteran that if it received a request for a personal hearing within 30 days of the letter, it would continue his compensation payments at the present rate. Additionally, the RO stated that the Veteran could request a hearing after 30 days. Following the issuance of the August 18, 2014 letter, the Veteran submitted a timely request for a personal hearing regarding the rating reduction on September 3, 2014. A review of the claims file does not indicate that the RO acknowledged or responded to the Veteran’s hearing request. Instead, the RO proceeded in reducing the gastrointestinal disability rating in a February 2015 rating decision without holding a hearing. Here, the provisions of 38 C.F.R. § 3.105 were not followed as the Veteran was deprived of his opportunity for a predetermination hearing prior to the rating reduction. Because the applicable procedural provisions were not followed in the instant case, the reduction of the gastrointestinal disability rating from 60 percent to 30 percent is void ab initio. As such, the Veteran’s appeal is granted, and the disability rating of 60 percent is restored. 2. Entitlement to an initial rating in excess of 60 percent for a gastrointestinal disability After the RO effectuated the rating reduction, the filed a notice of disagreement requesting a 60 percent rating. Veterans are presumed to seek the highest rating allowable by law. As such, the Board will consider whether a higher rating is warranted. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in §4.14. Thus, ratings under diagnostic codes (DCs) 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38C.F.R. §4.114. In the initial rating decision from June 2012, the AOJ determined that GERD was the predominant gastrointestinal disability and it was rated under Diagnostic Code 7399-7346, indicating it was most analogous to symptoms associated with hiatal hernia. The rating schedule cannot account for every disease; therefore, it is permissible to rate unlisted conditions under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Such ratings are to be “built-up” by selecting the first two digits from that part of the schedule most closely identifying the part of the body involved, and the last two digits 99, indicating an unlisted condition. See 38 C.F.R. §§ 4.20, 4.27. The Veteran’s gastrointestinal disability is rated analogously to hiatal hernia under DC 7346. A 30 percent evaluation is contemplated for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The maximum rating for GERD is a 60 percent rating, which is contemplated for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment in health. At the February 2012 VA examination, the Veteran admitted to waking up “choking on vomit.” He felt that his digestive movement was very slow and that he had to eat more in order to push food through his digestive system. He also noted a sensation of movement in the left side of his abdomen. He had gained over 40 pounds within the last year. Notable gastrointestinal symptoms included nausea, diarrhea, indigestion, heartburn, and regurgitation. He also had occasional involuntary bowel movements. The Veteran was afforded another VA examination in March 2014. Here, the Veteran disclosed constant gaseous pressure in his stomach. He noted that he “passes gas and burps all the time.” He also endorsed losing control of his bowel movements. Although he stated that he did not eat, he had not lost any weight. His current symptoms included infrequent episodes of epigastric distress reflux and more or less constant episodes of bowel disturbances with abdominal distress. VA treatment records in April 2014 record the Veteran’s complaints of problems with regurgitation, chronic bloating, and difficulty eating non-processed food. By September 2015, he endorsed chronic abdominal pain with severe diarrhea. Treatment notes in October 2016 documented continuing epigastric abdominal discomfort after eating, cramping, and episodes of explosive diarrhea. He also experienced small amounts of bleeding associated when experiencing frequent diarrhea. By March 2019, uncontrolled reflux with vomiting and intermittent chest pain was recorded. At a March 2019 hearing, the Veteran confirmed the continuing gastrointestinal problems of gaseous pressure, vomiting, and digestive problems. He also alluded to having higher amounts of rectal bleeding. The Veteran was afforded a third VA examination for his gastrointestinal disability in August 2020. Notable symptoms included persistent recurrent epigastric distress, reflux, and substernal pain. He also had vomiting less than once a day for a total of four or more times in a year. Esophagus stricture amenable to dilation was also recorded. The Veteran did not have weight loss. Based on the existing record, an initial rating in excess of 60 percent is not warranted at any time during the period on appeal. A 60 percent disability rating represents the maximum schedular evaluation available under the schedular criteria of Diagnostic Code 7346. Thus, the Veteran is receiving the maximum allowable schedular disability rating under Diagnostic Code 7399-7346; therefore, a higher schedular rating for the service-connected gastrointestinal disability may not be granted under Diagnostic Code 7399-7346. Sabonis v. Brown, 6 Vet. App. 426. The Board finds no other applicable diagnostic codes which would afford the Veteran a higher disability evaluation. As a reminder, ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other. Rather one rating will be given based on the predominant disability. In addition to GERD, discussed above, the Veteran’s service-connected digestive disability includes diverticulitis (rated under DC 7327) and irritable bowel syndrome (IBS) (rated as irritable colon syndrome under DC 7319). For diverticulitis, DC 7327 directs that the disability be rated as irritable colon syndrome, peritoneal adhesions, or colitis, ulcerative, depending upon the predominant disability picture. Turning to irritable colon syndrome, the highest rating available for this disability is 30 percent. As the Veteran qualifies for the 60 percent rating for GERD, a rating based on IBS is not more beneficial. Furthermore, the evidence does not show that the Veteran has peritoneal adhesions or ulcerative colitis. Therefore, a rating under either of those codes would be inappropriate. Accordingly, the appeal for increased disability ratings pursuant to Diagnostic Code 7399-7346 is not warranted at any time during the appeal period. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.